NO. COA01-782
Appeal by defendant from judgment dated 27 May 1999 by Judge
Timothy S. Kincaid in Gaston County Superior Court. Heard in the
Court of Appeals 26 March 2002.
Attorney General Roy Cooper, by Assistant Attorney General
Diane G. Miller, for the State.
David Childers for defendant-appellant.
GREENE, Judge.
Kelvin L. Howell (Defendant) appeals a judgment dated 27 May
1999 entered consistent with a jury verdict finding him guilty of
taking indecent liberties with a child, a statutory sexual offense,
and statutory rape.
On 3 August 1998, Defendant was indicted for indecent
liberties with a minor, statutory sexual offense of a person who is
fifteen years old, and statutory rape of a person who is fifteen
years old. At trial, the State's evidence revealed that in 1997
and 1998, Defendant, then thirty years old, worked as a third-
shift, part-time counselor at a teen shelter in Belmont, North
Carolina. The minor victim, A.G., who was fifteen years old,stayed at the teen shelter from 29 December 1997 until 28 January
1998. After being at the shelter for several weeks, Defendant
allowed A.G. and her roommate to leave their room after the lights
were out. During those times, the two girls would watch
television. Sometimes Defendant and A.G. would go into the
shelter's office alone.
During her time at the shelter and while out of her room, A.G.
engaged in oral and vaginal intercourse with Defendant. A.G.
recorded the dates of these sexual encounters on a calendar in her
room. A.G. also told her roommate about her activities with
Defendant, and the roommate was aware of A.G.'s calendar notations
of her sexual activities with Defendant. After leaving the shelter
and being placed in a group home, A.G. ran away to a friend's house
on or about 17 February 1998. She thereafter contacted Defendant
several times. Defendant subsequently picked up A.G. and took her
to a motel. At the motel, Defendant engaged in oral and vaginal
intercourse with A.G. The next morning, Defendant took A.G. to her
mother's residence.
Defendant objected to the proposed testimony of N.E., a past
resident of the teen shelter, regarding her alleged sexual
encounters with Defendant. The trial court heard N.E.'s testimony
on voir dire, made findings regarding the similarities between
Defendant's sexual acts with A.G. and N.E. as well as the temporal
proximity of those acts, and subsequently overruled Defendant's
objection. The trial court instructed the jury and admitted
N.E.'s testimony into evidence for the limited purpose of showingintent and the existence of “a state of mind in . . . Defendant, a
certain scheme or plan or design or system involving the alleged
crime charged.” The trial court repeated its instruction during
final jury instructions.
N.E. testified Defendant had engaged in sexual intercourse
with her as well. N.E., fifteen years old at the time, was
admitted to the shelter on 18 February 1998. N.E. was not assigned
a roommate. On the night of 18 February 1998, while working the
third shift, Defendant went into N.E.'s room, undressed her, and
engaged in vaginal intercourse with her. Thereafter, when N.E.
began to bleed, Defendant instructed her to go to the bathroom.
Upon her return from the bathroom, Defendant called N.E. into the
shelter's office, at which time he again engaged in vaginal
intercourse with her. The next morning, when N.E.'s mother picked
her up from the shelter, N.E. told her mother about the events of
the previous night. N.E.'s mother then took the teen to the
hospital, where she was examined by a doctor and interviewed by a
law-enforcement officer. While the State initially indicted
Defendant for offenses related to N.E.'s allegations, the charges
were not prosecuted based on the State's belief that the evidence
was insufficient.
Defendant denied ever having engaged in sexual activities with
A.G. or N.E. Although he admitted having spoken to A.G. on 17
February 1998, Defendant stated that his wife was on an extension
during the conversation and all he did was encourage A.G. to return
to the group home. As to his name and signature appearing on theregistration card at the motel, Defendant testified he had taken a
friend, who had been fighting with his roommate and wanted to be
alone, to the motel and registered the friend under his name
because the friend did not have any identification on him.
Defendant was, however, unable to explain why the registration card
reflected that there had been two guests at the motel.
During direct examination, Defendant asked Elizabeth Hawk
(Hawk), a residential coordinator for a mental health center, if
she knew about Defendant's character and reputation in the
community. At this point, the State objected. The State asked
Defendant to specify which area of reputation or character he was
attempting to elicit from Hawk and noted that there was evidence
Defendant had previously been arrested for drug possession. The
State observed that “before [Defendant] opens the door[,] . . . [he
should] give second consideration to his question” because a
witness' unawareness of a defendant's prior bad acts could properly
be used to attack the witness' credibility as to her ability to
speak to the defendant's character and reputation. The trial court
stated “[t]he trait of . . . Defendant for honesty or truthfulness
or law abidingness . . . would certainly be admissible, but I agree
[with the State that] it does tend to open the door for
cross[-]examination for specific instances.” At the conclusion of
this conference, Defendant withdrew his question to Hawk regarding
Defendant's character and reputation.
The jury found Defendant guilty, and the trial court
consolidated the charges for judgment and sentenced Defendant to240 to 297 months imprisonment.
_____________________
The issues are whether: (I) N.E.'s testimony regarding the
details of Defendant's alleged sexual activity with her was
admissible under N.C. Gen. Stat. § 8C-1, Rules 404(b) and 403; and
(II) the trial court committed reversible error in its ruling
regarding Defendant's attempt to open the issue of his character.
I
Defendant argues the trial court erred in introducing the
testimony of N.E. regarding the details of Defendant's alleged
sexual activity with her. Specifically, Defendant contends the
testimony was not admissible under N.C. Gen. Stat. § 8C-1, Rules
404(b) and 403. We disagree.
Rule 404(b) prohibits the admission into evidence of other
crimes, wrongs, or acts “to prove the character of a person in
order to show that he acted in conformity therewith. [Such
evidence] may, however, be admissible for other purposes, such as
proof of motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake, entrapment or accident.” N.C.G.S.
§ 8C-1, Rule 404(b) (1999)
;
see State v. Coffey, 326 N.C. 268, 278-
79, 389 S.E.2d 48, 54 (1990) (describing Rule 404(b) as a rule of
inclusion). In
State v. Harris, this Court held that “'[w]hen
evidence of the defendant's prior sex offenses is offered for the
proper purpose of showing plan, scheme, system, or design . . . the
“ultimate test” for admissibility has two parts: First, whether the
incidents are sufficiently similar; and second, whether theincidents are too remote in time.'”
State v. Harris, 140 N.C. App.
208, 212, 535 S.E.2d 614, 617 (quoting
State v. Davis, 101 N.C.
App. 12, 18-19, 398 S.E.2d 645, 649 (1990),
appeal dismissed and
disc. review denied, 328 N.C. 574, 403 S.E.2d 516 (1991)),
appeal
dismissed and disc. review denied, 353 N.C. 271, 546 S.E.2d 122
(2000). Moreover, in instances where such evidence is offered to
prove a defendant's intent to commit the similar sexual offense
charged, our Supreme Court has stated a rule of liberal admission.
See State v. White, 331 N.C. 604, 612, 419 S.E.2d 557, 561-62
(1992) (citing
State v. Boyd, 321 N.C. 574, 578, 364 S.E.2d 118,
120 (1988) (evidence the defendant was found naked in bed with a
young female relative on prior occasion admissible to demonstrate
the defendant's intent or scheme to take sexual advantage of young
female relatives left in his custody)).
The admissibility of evidence under Rule 404(b) is further
“subject to the weighing of probative value versus unfair prejudice
mandated by [N.C. Gen. Stat. § 8C-1, Rule] 403.”
State v. Agee,
326 N.C. 542, 549, 391 S.E.2d 171, 175 (1990). Our Supreme Court
noted in
Coffey that evidence which is probative of the State's
case is necessarily prejudicial to the defendant; thus, “the
question is one of degree.”
Coffey, 326 N.C. at 281, 389 S.E.2d at
56. “Whether to exclude evidence under Rule 403 is a matter left
to the sound discretion of the trial court.”
Id.
In the instant case, the trial court heard the testimony of
both A.G. (before the jury) and N.E (on
voir dire), and thereafter,
made findings regarding the similarities between Defendant's sexualacts with A.G. and N.E. and the temporal proximity of those acts.
(See footnote 1)
The trial court then concluded that N.E.'s testimony was admissible
under Rules 404(b) and 403 for the limited purpose of showing
intent and common scheme or plan. At the time of N.E.'s testimony
before the jury, the trial court gave a limiting instruction and
repeated this limitation during final jury instructions, which
served to minimize the degree of prejudice to Defendant.
Defendant's reliance on
State v. Scott, 331 N.C. 39, 413
S.E.2d 787 (1992), is misplaced. In
Scott, our Supreme Court
held
that where the probative value of a prior alleged offense depends
upon the defendant having in fact committed the prior alleged
offense, his acquittal of the offense in an earlier trial so
divests the evidence of probative value that, as a matter of law,
it cannot outweigh the tendency of such evidence to unfairly
prejudice the defendant.
Id. at 44, 413 S.E.2d at 790. The
State's decision in this case to not prosecute Defendant for
engaging in sexual acts with the minor N.E is not the equivalent of
an acquittal of the charges.
See State v. Hickey, 317 N.C. 457,
466, 346 S.E.2d 646, 652 (1986) (the State's pre-trial remark that
it was not proceeding on some of the offenses charged in an
indictment does not have the immediate effect of an acquittal).
As Defendant was not unfairly prejudiced, the trial court did
not abuse its discretion in admitting the testimony of N.E. This
assignment of error is therefore overruled.
II
Defendant next argues the trial court committed reversible
error in ruling the State could introduce evidence of his unrelated
arrest for drug possession to rebut evidence of his good character.
As Defendant had not been tried or convicted of those charges, he
contends the trial court's ruling was in error. We disagree.
During his case-in-chief, Defendant asked Hawk if she knew
about Defendant's character and reputation in the community. The
State objected and asked to be heard outside of the jury's
presence. During an exchange with Defendant, the State reminded
him that investigative files revealed Defendant had been arrested
for drug possession in the past. The State cautioned Defendant
that “before [he] opens the door[,] . . . [he should] give second
consideration to his question.” At that point, the trial court
commented on its perception of the law, and Defendant subsequently
withdrew his question to Hawk.
We first note that in withdrawing his question, Defendant
waived appellate review of the trial court's ruling.
See State v.
Larrimore, 340 N.C. 119, 149, 456 S.E.2d 789, 805 (1995).
Assuming,
however, the trial court's ruling was properly before
this Court, Defendant has misinterpreted the trial court's
statements. Contrary to Defendant's contentions, the trial court's
statements were no more than a restatement of N.C. Gen. Stat. § 8C-
1, Rules 404 and 405. Further, the trial court's statements tend
to show agreement with Defendant that his evidence of good
character was admissible. The trial court merely cautioned thatsaid evidence would open the door for the State to cross-examine
the witness as to specific instances of Defendant's conduct. At no
time did the trial court issue a ruling as to the admissibility of
evidence regarding any unrelated drug charges of which Defendant
had not been convicted. Accordingly, this assignment of error is
also overruled. Defendant's remaining assignments of error, which
are not discussed in his brief, are deemed abandoned.
See N.C.R.
App. P. 28(a).
No error.
Judges HUDSON and TYSON concur.
Report per Rule 30(e).
Footnote: 1